Yesterday Ater Wynne attorney Art Butler was a guest on Seattle's NPR affiliate, KUOW, speaking about the FCC's new plan to make high-speed internet available to all Americans. Listen to the podcast of the program here.

The Oregon Court of Appeals has again enforced an arbitration clause in an employment contract, rejecting the employee's claim that the clause is unconscionable. In Livingston v. Metropolitan Pediatrics, LLC, the plaintiff, a pediatrician, took issue with the conduct of his employer and other doctor members and employees related to an investigation of the clinic's child vaccine program. He alleged he was ultimately terminated because of the concerns he expressed to his employer and government authorities.

Plaintiff filed common law and statutory employment claims against his employer and the others in court. The employer moved to abate the claims and compel arbitration, citing a clause in the employment agreement that required arbitration of "[a]ny controversy, dispute or disagreement arising out of or relating to this Agreement, or the breach thereof." The trial court denied the employer's motion, ruling that the arbitration clause is "unconscionable" and, therefore, unenforceable. The employer appealed, and the Court of Appeals last week agreed with the employer and sent the case back for arbitration of all claims.

The test for "unconscionability" in Oregon has two parts, one procedural and the other substantive. A contract is procedurally unconscionable, and therefore not enforceable, if there is "oppression" or "surprise" in the "conditions of contract formation," but unequal bargaining power alone is insufficient for a finding of procedural unconscionability. A contract is substantively unconscionable if the "terms" of the contract are "unreasonably" one-sided, such that their "effect" makes the parties' respective obligations "so unbalanced as to be unconscionable."

In this case, Plaintiff did not contend that the agreement was procedurally unconscionable; the Court of Appeals noted that, in any event, because plaintiff is a highly educated physician, any inequality in bargaining power was minimal. The trial court, however, had found these aspects of the agreement substantively unconscionable: (1) the possibility that plaintiff would have to pay defendant's attorney fees and costs if plaintiff is unsuccessful on his "blacklisting" claim; (2) excessive arbitration fees assessed against plaintiff; (3) ambiguity about which set of American Arbitration Association rules would govern the arbitration; and (4) a requirement of confidentiality. Before the Court of Appeals, plaintiff asserted these and other grounds for a finding of unconscionability and further argued that the arbitration clause should not apply to intentional torts, statutory claims, and claims against non-signatories to the employment agreement. The Court of Appeals addressed the trial court's findings as well as the other arguments put forth by plaintiff, and held that none of the concerns arises to the level of substantive unconscionability or otherwise requires court litigation of the parties' disputes. Central to the ruling of the Court of Appeals is the very broad language of the arbitration clause allowing for arbitration of "any controversy, dispute or disagreement."

Last night, President Obama signed into law an extension of the COBRA subsidy period until March 31. The extension allows employees who are involuntarily terminated between March 1 and March 31 to receive the 65% COBRA premium subsidy for up to 15 months. The new law also broadens the definition of "assistance eligible individual" to include employees who lost coverage due to a reduction in hours, but did not elect COBRA then and were later terminated. Under the original law, such employees were not eligible for the subsidy, since the involuntary termination did not cause the loss of coverage.

The new law is effective as of March 1, so employees who terminated after February 28 when the subsidy period expired are eligible for the extension. Although the extension is for only the month of March, several pending bills would provide for much longer extensions.

Last month in Cumbie v. Woody Woo, Inc., the Ninth Circuit addressed whether a restaurant violates the Fair Labor Standards Act (FLSA) when, despite paying a cash wage greater than the minimum wage, it requires its wait staff to participate in a "tip pool" that redestributes some of their tips to the kitchen staff.

Judge O'Scannlain, writing for the court, began with the default rule that an arrangement to turn over or redistribute tips is presumptively valid, unless such arrangement is forbidden by statute. The plaintiff, a server at a Portland restaurant, argued that tip pooling violates section 203(m) of the FLSA, which provides that restaurants must allow employees to keep all of their tips, except when the employee participates in a tip pool with other "customarily tipped employees." The plaintiff argued that members of the kitchen staff are not "customarily tipped employees," thus rendering her tip pool "invalid." The Ninth Circuit rejected the plaintiff's interpretation, finding that the FLSA "imposes conditions on taking a tip credit and does not state free standing requirements pertaining to all tipped employees." (Emphasis in original.)

While rendering judgment for the employer here, the court hinted that the outcome may be different in situations where a restaurant pays its wait staff less than the minimum wage and utilizes a "tip credit" to make sure the employees' wages exceed the minimum wage.